Carl Derrill Davies [2019] EWCA Crim 919
Summary
In R v Carl Derrill Davies [2019] EWCA Crim 919 the Court of Appeal (Mr Justice Jeremy Baker and Sir Kenneth Parker) dismissed an appeal against the activation in full of a suspended sentence following commission of a further offence during its operational period.
On 28 February 2019 at Swansea Crown Court Mr Davies pleaded guilty to doing an act tending and intended to pervert the course of public justice and to a summary offence of driving without insurance. The Recorder imposed six months’ imprisonment on the indictable count, no separate penalty on the summary offence, and a driving disqualification of one year with a 24‑week uplift. The offences had been committed during the 18‑month operational period of a 23‑week suspended sentence imposed on 23 February 2018 at Merthyr Tydfil Crown Court for possession of a Class A drug and possession with intent to supply a Class B drug. The Recorder activated the suspended sentence in full and ordered the 23 weeks to run consecutively to the six months, making a total of six months and 23 weeks’ imprisonment. Mr Davies appealed by leave of the single judge.
On 1 May 2018 Mr Davies had been stopped by police after overtaking their vehicle at speed. He gave his name as Paul Davies, his brother, and tested positive for cannabis at the roadside. He was arrested and conveyed to custody where a blood sample was taken. At the station he confirmed the false name and was released under investigation. Analysis of the blood sample revealed he was over the permitted limit, having 2.8 micrograms of cannabis and 800 micrograms of diazepam per litre of blood. A postal requisition was issued. When Paul Davies attended the magistrates’ court he denied having been stopped. The police then arranged for DNA analysis of the blood sample. The DNA database matched the sample to Mr Davies. When arrested Mr Davies admitted in interview that he had been the driver and had given his brother’s false name. Due to the delay caused by his actions the prosecution were unable to prosecute him for driving whilst unfit through drugs.
Mr Davies was 46 years of age with an extensive history of offending over 30 years. His previous convictions included burglary, public disorder and violence, dishonesty and drugs. A wide variety of sentences had been imposed including periods of both suspended and immediate custody.
In his sentencing remarks the Recorder described the fact that Mr Davies had sought to implicate his own brother for the driving offences as despicable. Mr Ieuan Rees, who appeared for Mr Davies, did not challenge the sentence on the indictment count but contended that the Recorder should not have activated the suspended sentence in full. He submitted that by February 2019 almost a year had elapsed since imposition of the suspended sentence in February 2018 and that Mr Davies had completed almost all of the rehabilitation activity requirement which formed part of the suspended sentence order. Mr Rees accepted the Recorder had been entitled to activate the sentence but submitted it should have been activated only in part.
The court held that the offence on indictment was undoubtedly serious, crossed the custody threshold and given Mr Davies’s history merited the sentence imposed. Not only did his action potentially place his brother at risk of wrongful conviction but it also enabled him to escape conviction for driving whilst unfit through drugs. The court considered paragraph 8 of Schedule 12 to the Criminal Justice Act 2003 which provides that the court must activate a suspended sentence in full or in part unless it would be unjust to do so in view of all the circumstances, including the extent to which the offender has complied with community requirements and the facts of the subsequent offence. The court referred to the Sentencing Council’s Breach Offences Guideline which applies to offenders sentenced on or after 1 October 2018. Where the new offence is more serious than that for which the suspended sentence was imposed or there is multiple offending the guideline penalty is full activation. The court observed that the guideline’s omission to take into account the extent to which an offender has completed unpaid work or curfew requirements in such cases may reflect some variance with the previous position in R v McDonagh [2017] EWCA Crim 2193 that there will generally be some reduction if there has been substantial compliance with an unpaid work requirement. The court noted that under section 125(1) of the Coroners and Justice Act 2009 the court is under a statutory duty to follow sentencing guidelines unless satisfied that to do so would be contrary to the interests of justice. Therefore even under the new regime there may still be situations, albeit not the generality, where some degree of reduction may still be necessary to reflect completion of unpaid work or curfew requirements if the court is satisfied it would be contrary to the interests of justice not to do so.
The court held that it had no doubt that the offence on indictment was more serious than the offences for which the suspended sentence was imposed. Accordingly under the guideline the guideline penalty was full activation of the original custodial term. The court noted that the suspended sentence included a 20‑day rehabilitation activity requirement and that Mr Davies had completed the SMART programme and at the time of sentence was having one‑to‑one appointments with his supervising officer. On the other hand the breach offence had occurred after only about two months following imposition of the suspended sentence order. In those circumstances the court considered that despite Mr Davies’s compliance with the rehabilitation activity requirement the Recorder was correct to have activated the suspended period in full, to order it to be served consecutively to the sentence on indictment, and that it was not contrary to the interests of justice for him to have done so.
The court addressed one further matter. Although the Recorder announced the period of disqualification as one year together with an extension of half of the custodial term, the court had recorded the disqualification as a total period of one year and 24 weeks including an uplift under the Road Traffic Offenders Act 1988. Strictly speaking half of the custodial term was 24½ weeks but as the extra weeks beyond the discretionary one year had properly been recorded as an uplift, which is the correct terminology under section 35B of the 1988 Act, and as the guidance in R v Needham [2016] EWCA Crim 455 allows for slightly more flexibility of calculation for an uplift rather than an extension under section 35A, the court confirmed that the order for disqualification was for one year and 24 weeks comprising one year’s discretionary disqualification together with an uplift of 24 weeks under section 35B. Any adjustment to add the half week would have offended section 11(3) of the Criminal Appeal Act 1968. In short, the appeal was dismissed and the Recorder had been correct to activate the suspended sentence in full and to order it to run consecutively to the six‑month term imposed on indictment.
On 28 February 2019 at Swansea Crown Court Mr Davies pleaded guilty to doing an act tending and intended to pervert the course of public justice and to a summary offence of driving without insurance. The Recorder imposed six months’ imprisonment on the indictable count, no separate penalty on the summary offence, and a driving disqualification of one year with a 24‑week uplift. The offences had been committed during the 18‑month operational period of a 23‑week suspended sentence imposed on 23 February 2018 at Merthyr Tydfil Crown Court for possession of a Class A drug and possession with intent to supply a Class B drug. The Recorder activated the suspended sentence in full and ordered the 23 weeks to run consecutively to the six months, making a total of six months and 23 weeks’ imprisonment. Mr Davies appealed by leave of the single judge.
On 1 May 2018 Mr Davies had been stopped by police after overtaking their vehicle at speed. He gave his name as Paul Davies, his brother, and tested positive for cannabis at the roadside. He was arrested and conveyed to custody where a blood sample was taken. At the station he confirmed the false name and was released under investigation. Analysis of the blood sample revealed he was over the permitted limit, having 2.8 micrograms of cannabis and 800 micrograms of diazepam per litre of blood. A postal requisition was issued. When Paul Davies attended the magistrates’ court he denied having been stopped. The police then arranged for DNA analysis of the blood sample. The DNA database matched the sample to Mr Davies. When arrested Mr Davies admitted in interview that he had been the driver and had given his brother’s false name. Due to the delay caused by his actions the prosecution were unable to prosecute him for driving whilst unfit through drugs.
Mr Davies was 46 years of age with an extensive history of offending over 30 years. His previous convictions included burglary, public disorder and violence, dishonesty and drugs. A wide variety of sentences had been imposed including periods of both suspended and immediate custody.
In his sentencing remarks the Recorder described the fact that Mr Davies had sought to implicate his own brother for the driving offences as despicable. Mr Ieuan Rees, who appeared for Mr Davies, did not challenge the sentence on the indictment count but contended that the Recorder should not have activated the suspended sentence in full. He submitted that by February 2019 almost a year had elapsed since imposition of the suspended sentence in February 2018 and that Mr Davies had completed almost all of the rehabilitation activity requirement which formed part of the suspended sentence order. Mr Rees accepted the Recorder had been entitled to activate the sentence but submitted it should have been activated only in part.
The court held that the offence on indictment was undoubtedly serious, crossed the custody threshold and given Mr Davies’s history merited the sentence imposed. Not only did his action potentially place his brother at risk of wrongful conviction but it also enabled him to escape conviction for driving whilst unfit through drugs. The court considered paragraph 8 of Schedule 12 to the Criminal Justice Act 2003 which provides that the court must activate a suspended sentence in full or in part unless it would be unjust to do so in view of all the circumstances, including the extent to which the offender has complied with community requirements and the facts of the subsequent offence. The court referred to the Sentencing Council’s Breach Offences Guideline which applies to offenders sentenced on or after 1 October 2018. Where the new offence is more serious than that for which the suspended sentence was imposed or there is multiple offending the guideline penalty is full activation. The court observed that the guideline’s omission to take into account the extent to which an offender has completed unpaid work or curfew requirements in such cases may reflect some variance with the previous position in R v McDonagh [2017] EWCA Crim 2193 that there will generally be some reduction if there has been substantial compliance with an unpaid work requirement. The court noted that under section 125(1) of the Coroners and Justice Act 2009 the court is under a statutory duty to follow sentencing guidelines unless satisfied that to do so would be contrary to the interests of justice. Therefore even under the new regime there may still be situations, albeit not the generality, where some degree of reduction may still be necessary to reflect completion of unpaid work or curfew requirements if the court is satisfied it would be contrary to the interests of justice not to do so.
The court held that it had no doubt that the offence on indictment was more serious than the offences for which the suspended sentence was imposed. Accordingly under the guideline the guideline penalty was full activation of the original custodial term. The court noted that the suspended sentence included a 20‑day rehabilitation activity requirement and that Mr Davies had completed the SMART programme and at the time of sentence was having one‑to‑one appointments with his supervising officer. On the other hand the breach offence had occurred after only about two months following imposition of the suspended sentence order. In those circumstances the court considered that despite Mr Davies’s compliance with the rehabilitation activity requirement the Recorder was correct to have activated the suspended period in full, to order it to be served consecutively to the sentence on indictment, and that it was not contrary to the interests of justice for him to have done so.
The court addressed one further matter. Although the Recorder announced the period of disqualification as one year together with an extension of half of the custodial term, the court had recorded the disqualification as a total period of one year and 24 weeks including an uplift under the Road Traffic Offenders Act 1988. Strictly speaking half of the custodial term was 24½ weeks but as the extra weeks beyond the discretionary one year had properly been recorded as an uplift, which is the correct terminology under section 35B of the 1988 Act, and as the guidance in R v Needham [2016] EWCA Crim 455 allows for slightly more flexibility of calculation for an uplift rather than an extension under section 35A, the court confirmed that the order for disqualification was for one year and 24 weeks comprising one year’s discretionary disqualification together with an uplift of 24 weeks under section 35B. Any adjustment to add the half week would have offended section 11(3) of the Criminal Appeal Act 1968. In short, the appeal was dismissed and the Recorder had been correct to activate the suspended sentence in full and to order it to run consecutively to the six‑month term imposed on indictment.
The appellant pleaded guilty to perverting the course of justice and a related offence of driving without insurance. He was sentenced to six months’ imprisonment and as the offence was committed during the operation period of a suspended sentence that sentence was ordered to be served in full, adding 23 weeks to run consecutively.
The appellant gave his brother’s name when stopped by the police, his brother was summonsed to court and it was only when the blood sample that had been taken was analysed that the false name was discovered. The delay meant that the appellant could not be prosecuted for driving whilst unfit through drugs.
There was no issue taken with the sentence for the substantive offence, the criticism was limited to the fact that the Recorder activated in full the suspended sentence. By the time the appellant was sentenced almost a year had elapsed since the imposition of the suspended sentence and he had completed most of the rehabilitation activity requirement.
Held: the offence which placed the appellant in breach of the order occurred about two months after the sentence was imposed, and the offence on indictment was more serious than the offences for which the suspended sentence was imposed (possession of Class A and possession with intent to supply Class B). Accordingly, under the Sentencing Council’s breach offences guideline, the guideline penalty was for full activation of the original custodial term. The appeal was dismissed save for a clarification as to the disqualification.